Dixon v The King
[2025] NZHC 1813
•3 July 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2025-419-000011
[2025] NZHC 1813
BETWEEN ELLIOT ROBERT DIXON
Appellant
AND
THE KING
Respondent
Hearing: 25 June 2025 Counsel:
M L Jepson and E J Saunders for Appellant K A Dillon for Respondent
Judgment:
3 July 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 3 July 2025 at 4 pm
Registrar/Deputy Registrar
Solicitors/Counsel:
Mark Jepson (Hamilton) for Appellant Hamilton Legal (Hamilton) for Respondent
DIXON v R [2025] NZHC 1813 [3 July 2025]
Introduction
[1] Mr Dixon appeals his sentence of three years’ imprisonment imposed on him by Judge R J Collins on 20 February 20251 in respect of three charges:
(a)causing death while driving with evidence of an excess of a controlled drug;2
(b)causing injury while driving with evidence of an excess of a controlled drug;3 and
(c)failure to carry out obligations in relation to an electronic search.4
[2] I must allow Mr Dixon’s appeal if I find that the Judge erred and that a different sentence should be imposed.5 If, as Mr Dixon contends, the sentence is manifestly excessive then that would be an error I would have to correct. The errors alleged as grounds of appeal are:
2.1.Identifying an excessive start point;
2.2.Giving an insufficient guilty plea discount of 20 per cent;
2.3.Giving no discount for previous good character;
2.4.Giving insufficient discounts for youth (10 per cent ), remorse (5 per cent) and prospects of rehabilitation (5 per cent); and
2.5.Making the determination that even if other discounts were available, a discount beyond 40 per cent would not be afforded.
[3] Ms Saunders, for Mr Dixon, submits that the end sentence should be a short term of imprisonment, which should be commuted to a sentence of home detention to a rehabilitative institution, namely GraceGate.
1 R v Dixon [2025] NZDC 3475.
2 Land Transport Act 1998, s 61(2)(b)(i) and 61(3AA); maximum penalty 10 years’ imprisonment or a fine not exceeding $20,000.
3 Section 61(2)(b)(i) and 61(3); maximum penalty five years’ imprisonment or a fine not exceeding
$20,000.
4 Search and Surveillance Act 2012, ss 130(1) and 178; maximum penalty three months’ imprisonment.
5 Criminal Procedure Act 2011, s 250.
The sentencing
[4] Judge Collins set out the facts on which he assessed his sentence:
[7] You and your victim, Melissa, had been in a relationship for about four weeks from late December 2023. From other reports, the forensic report and so on, it may have been a little bit longer than that but you had been in a relationship with her for, as relationships go, a relatively short period of time. That does not diminish for a moment. I accept how strongly you felt towards her. In any event, at around 10 to eight on the Saturday 27 January 2024 you were the driver of your Toyota motor vehicle and she was the passenger. You advised the police that you were heading from Raglan back into Hamilton after purchasing MDMA, commonly known as ecstasy, from an unknown person in Raglan.
[8] At that time the second victim was driving her vehicle from Hamilton towards Raglan after finishing her shift at Waikato Hospital and the weather was overcast, it was drizzling with rain and the road surface was wet.
[9] As you approached Ferguson Road near Whatawhata you lost control of the vehicle you were driving and when failing to negotiate a right-hand curve in the road. The corner had an advisory sign of 65 kilometres per hour. You later advised police that you were travelling at about 80–90 kilometres per hour which you acknowledged was too fast for the wet conditions. You lost control of the vehicle, it went into a slide, rotated, crossed the centre line, and collided with the front of Ms van den Engel’s vehicle as she travelled on the correct side of the road and the vehicle you were driving crossed onto her side of the road.
[10] Ms Teague suffered severe head injuries. She was rushed to Waikato Hospital but died from her injuries the following day.
[11] A blood sample was taken from you at Waikato Hospital pursuant to the Land Transport Act 1998 and on analysis your blood contain tetrahydrocannabinol at a level of 6.9 nanograms per litre of blood, but the science is that a margin of error of plus or minus 1.9 is allowed so officially, and as far as I am concerned, the reading is one of five nanograms per litre of blood. So I want to make it clear that that is the basis on which sentencing proceeds. However, the tetrahydrocannabinol lower range level of five nanograms still exceeds the high risk legal limit for tetrahydrocannabinol of three nanograms per millilitre and is significantly higher than the tolerance legal limit for tetrahydrocannabinol of one nanogram per millilitre of blood as set out in the Land Transport Act.
[12] The second victim was examined by St John’s ambulance at the scene but she declined to be transported to Waikato Hospital. She later sought treatment from her GPs and X-rays revealed that she suffered a fractured sternum as a result of the crash. She was off work for approximately seven weeks due to that injury.
[13] On 1 February, so just a few days after these events, your black iPhone was located in the wreckage of the Toyota vehicle. The police collected that as a part of their investigation.
[14] On 12 February a search warrant issued pursuant to s 6 of the Search and Surveillance Act 2012 was executed authorising the search of your cellphone to obtain location and GPS data to help the serious crash unit with their analysis to establish speed that you were travelling at. The search warrant also authorised a search of your phone for communications made via social media applications to determine if you were operating the phone at the time of the crash and to establish the identity of the persons who had supplied the class B controlled MDMA that you had told the police that you had purchased.
[15] On 13 February and again on 15 February emails were sent to you requesting the PIN code for your cellphone pursuant to the Search and Surveillance Act. You acknowledge through your lawyer that you had received the demands for this PIN code. You were given until 2 pm on 22 February to provide the PIN code but you did not provide it. You failed to provide the PIN or any reasonable explanation for not providing it.
[5] The Judge went on to note:
(a)the police, through other means, extracted information from the cellphone, but it was severely limited and did not assist; and
(b)the serious crash unit concluded that the contributing factors to the crash were the tetrahydrocannabinol (THC) levels in Mr Dixon’s blood, his admitted speed and the road conditions.
[6]The Judge also noted:
[18] In statements to the police you referred to a hydroplane moment about five to 10 minutes before the crash and said that you could have slowed down after that but that you did not.
[7] The Judge identified as aggravating factors the level of THC in Mr Dixon’s blood, the speed at which he drove in the prevailing conditions and that there were two victims. The starting point adopted by the Judge was five years’ imprisonment.
[8] Personal mitigating factors were then considered, in the light (particularly) of a report by Ms Young, a registered clinical psychologist. The Judge gave the following discounts:
(a)Pleas of guilty — 20 per cent.
(b)Youth (19 years old) — 10 per cent.
(c)Remorse — five per cent.
(d)Rehabilitation prospects — five per cent.
[9]The Judge declined to give a discount for good character.
[10]The Judge said:
[46] That would see me reduce the sentence of five years to one of three years. If there had been other matters that I was prepared to acknowledge or could have addressed other headings, Mr Dixon, it would not have made any difference to the overall credit or acknowledgement I have been prepared to make. At my point at 40 per cent reduction from the appropriate starting point, anything more than that and we start to lose sight of actually what happened and we would lose sight of the gravity of the offending. So while it might seem a particularly formulaic and mathematical exercise and one devoid from peoples’ lives to get to three years the point I am trying to make is that is the limit that I was prepared to go to reduce the sentence given the gravity of what has happened here.
[11] The Judge did not mention the charge of failing to carry out obligations in relation to an electronic search other than obliquely, I infer, in a comment that Mr Dixon failed “to provide or co-operate with the police”. This was in the context of discussing the appropriate discount for remorse. The assigned penalty for the charge was one month’s imprisonment concurrent with the other sentences.
The appeal
[12] Ms Saunders submits that the Judge erred in his assessment of the starting point by using as comparators two cases where the driving was worse than Mr Dixon’s:6
4. The excessive start point came about by incorrectly assessing culpability by reference to two cases, one of which involved racing and the other which involved persistent bad driving, which both involved more serious driver errors. The objectively reliable evidence from the Crash Investigation Report confirms the physics of the accident. A warranted and registered car, with legal tread depth, took the corner on the correct side of road and at approximately 15 kilometres per hour above the advisory speed limit. The road conditions were wet, and the Appellant overcorrected causing the vehicle to fishtail and collide with an oncoming vehicle. But for the cannabis reading, on those facts, the Appellant’s driving was not dangerous or reckless. It was similar to careless use causing death
6 Gacitua v R [2013] NZCA 234; and R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007.
cases because it was error in judgment to fail to navigate the road appropriately in wet road conditions, thereby falling below reasonable prudent driver rather than taking a direct course of action known to cause a high risk of danger.
[13] In developing her submission that the Judge erred in relying on starting points in cases in which the driving of the defendants was more serious than Mr Dixon’s, Ms Saunders referred me to a further case, R v Carter:7
51.The Defendant pleaded to charges of drug driving a motor vehicle causing death [as well as] causing injury. Additionally, there were further charges of driving without an appropriate licence, operating a unlicenced motor vehicle and possession of Class A and B drugs.
52.The facts included, alongside the fact he and the car should not have been on the road to begin with, were:
52.1The defendant had little sleep the night prior;
52.2He was taking diazepam – a drug that had a warning that it was dangerous to drive, which he ignored;
52.3That he was smoking methamphetamine through a pipe while driving;
52.4He also had cannabis in his blood at the time;
52.5There were two incidents of the defendant losing control prior to the event before the court, which were not enough to deter him;
52.6It increased into “even more dangerous driving” involving conducting a 21-minute video call while driving, crossing the centre lane into oncoming traffic, speeding up and slowing down;
52.7That the defendant made light of the inability to control the vehicle and seemingly bragging about it;
52.8The manner of his driving was report to the Police by a member of the public;
52.9Before the Police could intervene, he approached a curve with an advisory speed of 65 km/h at about seven to nine km/h over the limit. He crossed the centre lane and collided with a vehicle, who were travelling in their correct lane. A couple were in the car resulting in one dying at the scene and the other being flown to hospital in critical condition.
53.The Judge determined there to be eight aggravating features:8
7 R v Carter [2025] NZHC 228.
8 At [20].
53.1That while being under the influence of a drug is inherent in the charge, the defendant was under the influence of three controlled substances at the time and was smoking methamphetamine while he was driving. This was treated as “a significant aggravating feature”;
53.2That it was prolonged, persistent and deliberate “very bad driving” that lasted over an hour and continued despite losing control and driving off the road two times prior to the accident;
53.3The driving was aggressive and highly dangerous. There were multiple incidents of crossing the centre line, varying speeds, loss of control making it clear that he would have appreciated that he should not have been driving and “presented an extreme risk of harming others”;
53.4That the Defendant was distracted by repeatedly texting and engaging in a lengthy video call;
53.5That he knew he should not have been driving because of the effects of the diazepam, which were marked on the label;
53.6That he knew he had little sleep the night before and drove in a state that was not fit for a “lengthy drive”;
53.7That he should never had been on the road given he had no licence and the car he was driving was not registered; and
53.8That the consequences of his offending included killing one person, severely injuring another and killing the couple’s pet dog.
54.The Defendant also had a poor driving history including driving with excess breath alcohol, refusing a blood specimen, careless driving and two apparent incidents of offending in Australia for driving under the influence of methamphetamine.
55.While there was no intention to harm others, the combination of aggravating features made the culpability “very high” in level and it was more of a “question of who was going to be the victim” rather than if there would be one that night.9
[14] The starting point adopted by the Judge in Carter was six years’ imprisonment. Ms Saunders submits that Carter is self-evidently so much more serious than the present case as to make it clear that Judge Collins’s starting point of five years’ imprisonment is excessive.
9 R v Carter, above n 7, at [22].
[15] In sum, Ms Saunders submits that a starting point lower than the three-and-a-half years advanced as appropriate at the sentencing was called for, namely three years.
[16] Ms Saunders submits that the full discount for entering pleas of guilty, 25 per cent, should have been afforded. She acknowledges that the Judge stepped down to 20 per cent because of the strength of the Crown case but submits that Mr Dixon could not have entered an earlier plea.
[17] The discount for youth, it is submitted, should have been 20 per cent, not the 10 per cent allowed by the Judge. The error lies in the Judge not giving proper regard to the causative effect of Mr Dixon’s youth, compounded by his long-term reliance on cannabis and his mental health disorders.
[18] A further 15 per cent should have been given, it is submitted, for Mr Dixon’s co-operation with police by disclosing the speed at which he was driving, his drug consumption and the aquaplaning experienced shortly before the crash:
63.… It is submitted that by being open about the offending and his abuse of drugs, goes towards factors such as remorse, good character (even if he is young), and prospects of rehabilitation. Counsel submits that a discount of 15 per cent would appropriately reflect this.
[19] In sum, Ms Saunders submits that a total discount of 60 per cent for personal mitigating factors should have been allowed. From the submitted appropriate starting point of three years, this would yield an end sentence of one year and two months’ imprisonment. This should be commuted to a sentence of home detention. A rehabilitation facility in Auckland operated by GraceGate has offered Mr Dixon a place.10
10 I note that Mr Dixon has been in custody since sentencing — a period of just over four months. However, he was also remanded in custody for a period before sentencing due to a breach of bail. If I were to accept Ms Saunders’s submissions on the appropriate starting point and discounts, there would be little room for a meaningful sentence of home detention.
The Crown’s submissions
[20] The Crown submits that, having regard to comparator cases, the starting point of five years’ imprisonment was stern but within range:
5.16The level of THC in the blood of the appellant (taken at the lower end of the margin of error) was 1.6 times the high-risk limit. Further, while it cannot be said that there was a warning from another passenger, the appellant himself admitted to an 'aqua plane' moment 10 minutes prior to the crash, and that he knew he should have slowed down. The loss of control of the vehicle shows that the appellant was driving with excessive speed in the conditions.
5.17It simply cannot be said that the offending was a ‘momentary dangerous error of judgement’, and as such cannot fall within the category of cases which warrant the starting point sought by the appellant.
[21] The Judge’s discounts are supported.
[22] The Crown accepts that a higher discount for youth (than 10 per cent) could have been given. But, prospects of rehabilitation are part of the youth discount factor and the Judge gave a separate discount of five per cent for this. Therefore, an overall, and appropriate, discount for youth of 15 per cent can be inferred.
Discussion
[23] The Land Transport Act 1998 (the Act) legislates a range of offences relating to the use of a motor vehicle in circumstances where injury or death results. Penalties rise according to outcome or if a driver has also consumed alcohol or drugs. For example:
(a)Careless driving causing injury or death: maximum penalty is three months’ imprisonment.11
(b)Careless driving causing injury or death aggravated by speeding or manner of overtaking: maximum penalty is three years’ imprisonment.12
11 Land Transport Act 1998, s 38.
12 Section 39.
(c) Reckless or dangerous driving causing injury: maximum penalty is five years’ imprisonment.13
(d)Reckless or dangerous driving causing death: maximum penalty is 10 years’ imprisonment.14
(e)Causing injury or death with evidence of excess alcohol or drug: maximum penalty is five years’ imprisonment in the former case and 10 years’ imprisonment in the latter.15
[24] Mr Dixon pleaded guilty to charges in the [23(e)] category. These offences were amended by s 14(1) of the Land Transport (Drug Driving) Amendment Act 2022 (the Amendment Act), which came into effect on 11 March 2023. The relevant wording is:16
(2)A person commits an offence if the person is in charge of a motor vehicle and causes bodily injury to, or the death of, a person—
…
(b)if, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, the blood of the person in charge—
(i)contains evidence of use of a listed qualifying drug and the blood concentration level of the drug exceeds the high-risk level for the drug; …
[25] Schedule 5 of the Act, also enacted by the Amendment Act, provides for a “tolerance blood concentration level” of THC of 1 ng/ml.17 The “high-risk level” is 3 ng/ml.
[26] The provision replaced by the Amendment Act used the expression “contains evidence of the use of a controlled drug specified in Schedule 1 of the Misuse of Drugs Act 1975”. The maximum penalties were not changed by the Amendment Act.
13 Land Transport Act 1998, s 36.
14 Section 36AA.
15 Section 61.
16 Section 61(2).
17 “ng/ml” = nanograms per millilitre.
[27] It is clear that the Amendment Act introduced a more precise regime for the offence of driving while affected by a drug in circumstances where injury or death are caused by prescribing the levels of drugs necessary to constitute the offences. The overriding purpose of the Amendment Act, as recorded in Hansard, is to more effectively deter drug driving on New Zealand roads.18
[28] As the examples set out at [23] illustrate, the manner of driving (“careless”, “reckless”, “dangerous”) increases risk and hence penalties. But manner of driving is not a prescribed factor in s 61(2). The risk which is penalised is driving while having a blood concentration level of a listed qualifying drug which exceeds the high-risk level for the drug.
[29] The manner of driving and the extent to which the blood concentration of a drug exceeds the high-risk level are factors which go to the judicial evaluation of the seriousness of an offence, and hence the appropriate sentence. Cases involving drink-driving causing injury or death can be relevant comparators, at least broadly.
[30] I think that cases where the manner of driving has caused injury or death, but where alcohol or drug consumption is not a factor, are of less relevance as comparators when considering a s 61(2) offence.
[31] In the current case, I do not accept Ms Saunders’s submission that the manner of Mr Dixon’s driving was momentarily careless. He did not drive to the conditions, he aquaplaned shortly before the accident and did not slow down, and he entered the corner well above the posted advisory speed. I accept, however, that the manner of driving was nowhere near as bad as most of the comparator cases cited.
[32] The next consideration is Mr Dixon’s blood concentration level of THC. It was 5 ng/ml. That is 66 per cent above the prescribed high-risk level.
[33] The final factor which I find is relevant to setting the starting point is that there are two victims. The first is his passenger, who was killed. The second is the
18 (4 August 2020) 748 NZPD 20486; (11 August 2021) 754 NZPD 4534; and (1 March 2022) 757
NZPD 7746.
blameless driver of the other vehicle involved in the accident. She suffered a serious injury.
[34] For the charge of causing death, with a maximum sentence of 10 years’ imprisonment, I would assess a starting point somewhat less than half of the maximum. The manner of driving was not egregious but the blood concentration level was well above the high-risk threshold. A range of three to four years’ imprisonment is available.
[35] For the charge of injuring the driver of the other vehicle, with a maximum sentence of five years’ imprisonment, I would again assess a starting point of somewhat less than half of the maximum. I add to the factors the nature of the injury: it was serious (a fractured sternum which resulted in seven weeks off work) but not permanent. A range of 18 months to two years’ imprisonment is available.
[36] The sum is a range of four-and-a-half years to six years. Considering totality (particularly, that this was a single incident), I find a range of four-and-a-half years to five years’ imprisonment is available.
[37] The Judge’s starting point of five years was at the upper end of the available range, but not outside it.
[38] I have reviewed Carter. With the greatest respect to the sentencing Judge, I consider that the adopted starting point of six years was very lenient. Another Judge might well have adopted a starting point of around eight years.
[39] The charge of failing to carry out his obligations in relation to an electronic search has a maximum penalty of three months’ imprisonment. The summary of facts states:
On 12 February 2024 a search warrant issued pursuant to Section 6 of the Search and Surveillance Act 2012 was executed authorising a search of the defendant’s cell phone to obtain location and GPS data to help the SCU crash analyst establish the speed the defendant was travelling at the time he lost control of the Toyota.
The search warrant also authorised a search the defendant’s cell phone for communication made via social media applications to determine if the
defendant was operating his phone at the time of the crash and to establish the identity of the person/s who had supplied the class B controlled drug MOMA the defendant advised Police that he and the first victim had just purchased in Raglan.
On 13 February 2024 and again on 15 February 2024, emails were sent to the defendant requesting the PIN code for his cell phone pursuant to the Search and Surveillance Act 2012, section 130. The defendant acknowledged through his lawyer that he had received the demands for his PIN code.
The defendant was given until 2pm on 22 February 2024 to provide the PIN code to his cell phone.
The defendant failed to provide the PIN or any reasonable explanation for not providing it. The information that was able to be extracted by Police from the defendant’s cell phone via other means was severely limited and did not cover the GPS, location or social media applications sought to help determine the cause of the crash.
[40] Mr Dixon’s failure to co-operate was to protect his drug dealers. It also meant that his self-reported details of his driving could not be checked.
[41] I would assess a starting point of two months’ imprisonment for this offence. However, given the overall need for a sentence which reflects the totality of offending, I would not add to the starting point for the two much more serious charges. I would do what the Judge did and bear the offending in mind when considering particular discounts.
[42]As to discounts:
(a)Pleas of guilty — 20 per cent was within the Judge’s discretion. There is no rule that requires a 25 per cent discount for early pleas. The Judge was entitled to take into account the strength of the evidence.19
(b)Youth (19 years old) — effectively, the Judge gave 15 per cent (because the five per cent for rehabilitation prospects goes with youth, and there were no actual prospects put to the Judge). A discount for youth is not given just because a person is young. There has to be some operative consequence of being young which goes to culpability. The offending here has nothing to do with Mr Dixon’s age. He used cannabis a lot
19 Karipa v R [2025] NZCA 474.
(for self-medication). The day of the accident was like any other day for him. There was no impetuous risk-taking. The discounts given by the Judge were available to him.
(c)No further discount for co-operation with the police was warranted. He told the police what happened, and later declined to comply with the requirement to give the PIN for his cellphone.
(d)No discount for good character was warranted. A discount is not available for reaching 19 years of age without incurring convictions for criminal offending. Mr Dixon was a long-term user of illegal drugs. There is no indication he ever made a positive contribution to his community.
(e)The discount for remorse (five per cent) was within range. I accept Mr Dixon was remorseful. His actions resulted in the death of his partner. He was, of course, badly affected by that. He also told the psychologist, Ms Young, that he did not think his cannabis consumption was linked to the accident. Remorse can be a reason for a significant discount where it is both genuine and results in positive action to help make amends or to atone. There is none of that here.
[43] Overall, I have to stand back and consider whether the end sentence of three years’ imprisonment is manifestly excessive. I have found that the Judge’s starting point was at the upper end of the range available to him, and the 40 per cent in discounts for Mr Dixon’s personal factors was also within his discretion. I do not find the end sentence manifestly excessive.
Decision
[44]The appeal is dismissed.
Brewer J
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